Journal of Criminal Law and Criminology
Volume 51
Issue 4 November-December
Article 2
Winter 1960
Law Relating to on the Street Detention,
Questioning and Frisking of Suspected Persons and
Police Arrest Privileges in General
Frank J. Remington
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Frank J. Remington, Law Relating to on the Street Detention, Questioning and Frisking of Suspected Persons and Police Arrest
Privileges in General, 51 J. Crim. L. Criminology & Police Sci. 386 (1960-1961)
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THE LAW RELATING TO "ON THE STREET" DETENTION, QUESTIONINGAND FRISKING OF SUSPECTED PERSONS AND POLICE ARREST
PRIVILEGES IN GENERAL
FRANK J. REMINGTON*
The author is Professor of Law in the University of Wisconsin. From 1950 to 1956, he served as a
member of the technical staff and Advisory Committee for the new Wisconsin Criminal Code. Professor Remington is also a Special Consultant and member of the Advisory Committee for the American Law Institute's Model Penal Code as well as Project Director of the American Bar Foundation's
Survey of the Administration of Criminal Justice in the United States.
The first number of this volume of the Journal (May-June, 1960) contains an article
entitled "Criminal Justice Research" which was prepared by Professor Remington at the special
request of the Board of Editors in commemoration of the Journal's fifty years of publication.-EDrrOR.
INTRODUCTION
There are four principal questions which will be
discussed during this session. They are:
(1) In the absence of sufficient grounds for an
arrest, should the police have the right to stop and
question a person as to his identity and reason for
being where he is, if the appearance or conduct of
that person has reasonably aroused police suspicion?
(2) Should the police be permitted to search such
a person for weapons or for incriminating evidence?
(3) If police practices of this nature are to be
legally sanctioned, what limitations should be imposed?
(4) With respect to police arrest statutes generally, should more freedom be granted to police
in recognition of their contentions that existing
laws are obsolete and hamper police attempts to
meet the public demand for adequate police protection?
Traditionally, all of these issues have been dealt
with by the law as a single problem of arrest despite
the fact that there are obviously important differences between questioning or frisking on the one
hand and taking a person into custody for purposes
of prosecution on the other hand. This over-simplified "single problem" approach of the law has had
unfortunate consequences. The failure of the law
to deal adequately with some important law enforcement problems has left enforcement officials
without sufficient guidance, thus creating un* I am indebted to Mr. Allan Joseph, a student at
the Wisconsin Law School, and to Professor Wayne
LaFave of Villanova Law School for considerable help
in the preparation of this paper.
necessarv risks both for the officer and for the
citizen with whom he deals. It is obvious that dear
definition of the scope of legitimate power is important for the officer as well as for persons whose
interests would be endangered by its abuse. Explanation for inadequacies in current law comes,
in part, from the way the law has developed.
Almost without exception, legal rules defining
the power of police officers have been developed
on a case by case basis. Putting aside the Uniform
Arrest Act, which has been adopted by only three
states,1 no legislature has attempted an adequate
formulation of police power in relation to issues
like the right to stop and question, the right to
frisk and the right to take a person into custody.
Such legislation as there is is largely sporadic,
usually adopting common law principles and
making them applicable to certain designated
types of police officers. Case law development is.
itself not undesirable provided the appellate court
gets important issues presented to it in proper
perspective. Such presentation has been lacking in
this field.3
An officer may stop and question a suspect under
circumstances in which the officer knows he will be
1
DEL. CODE ANN., tit. 11, §1902 (1958); N. H. Rxv.
STAT. Aim. 594.2 (1960); R. I. GEN. LAWS, tit. 12, c. 7.
For a discussion of the act, see Warner, The Uniform
Arrest Act, 28 VA. L. REV. 315 (1942).
2 The American Law Institute has currently under
consideration a project to formulate a Model Law of
Arrest, Search and Seizure.
4 Apparently the case law development may be
thought adequate so far as the development of the law
of torts is concerned. See HEAxER & JAms, THE LAw
OF ToRas §3.18, at 275 (1956): 'The law of arrest
represents the compromise between two conflicting in-
19601
POLICE DETENTION AND ARREST PRIVILEGES
in danger if the suspect is armed. Current police
practice under such circumstances is to frisk the
suspect.4 If a gun is found, its admissibility may be
in issue in states which exclude evidence which is
obtained illegally. The basic issue is whether police
have the right to frisk a suspect whom they have
no right to arrest. This is not the issue which is
presented to the appellate court, however. Typically, the prosecution will argue that, an arrest was
made and the frisking was incidental to the arrest.
The defense will argue that there were no grounds
for arrest. However the case is decided; the principal issue, the right to frisk a suspect in the absence of an arrest, is avoided. The law and practice continue, therefore, to fail to reflect each other's
influence.
Even the issue of the right to stop and question
a suspect is typically avoided with the result that
this most common, most important law enforcement practice is neither condemned nor sanctioned
in most jurisdictions. For example, in a recent
case in the United States Supreme Court the majority of the Court held that the issue of the right
to stop and question is identical with the issue of
the right to take a person into custody. 5 While
the law might properly take the position that there
is no right to stop and question a suspect unless
adequate grounds for arrest exist, this conclusion
ought not be based upon the uncritical assumption
that the questions lack important differences.
The individual who desires to challenge the right
of a law enforcement officer to stop and question,
frisk, or arrest him can do so by bringing a tort
action against the officer. Typically, the cause of
action will be for the intentional tort of false imprisonment. If the officer is to escapq liability he
must do so upon one of two grounds: (a) there was
no confinement without the consent of the plain-terests of the highest order-the interest in personal lib.erty and the interest in apprehension of criminals. It
represents one of the most successful efforts of the
-common law to accommodate itself both to the needs
of society and of its individual members."
4See for example, 2 Los ANGELES PoLIcE DEP'T
DAILY MArNrNG BUL=TIN 126 (1950). The practice in
'Philadelphia is discussed in Note, PhiladdphiaPolice
Practiceand the Law of Arrest, 100 U. PA. L. REv. 1182,
1203 (1952).
' Henry v. United States, 361 U.S. 98 (1959). Com-pareMr. Justice Burton, concurring in Brinegar v. U.S.,
338 U.S. 160, 179 (1949): "Government agents are
-commissioned to represent the interests of the public
in the enforcement of the law and this requires affirmative action not only when there is reasonable ground
for an arrest or probable cause for a search, but when
there is reasonable ground for an investigation."
tiff and thus no imprisonment at all; or (b) the
officer was privileged to confine the plaintiff under
the existing circumstances. The only privilege
category generally recognized is the privilege which
an officer has to make a lawful arrest. 6 In this situation counsel for the police officer is therefore likely
to arue either that there was no confinement without consent or that adequate grounds for an arrest
existed and thus the conduct was privileged. Whatever the decision of the court, the central problem
is avoided. There still is no basis for knowing
whether there are circumstances in which an officer can confine a suspect for a short period of time
in order to question him when the person does not
consent and there are not adequate grounds to
make an immediate arrest. As a consequence current practice continues without' effective guidance
from the law.
Generalization is thus made difficult by the
ambiguity brought about by the failure of current
law to deal adequately with important current enforcement problems like the right to stop and question a suspect or to frisk a suspect thought to be
armed and dangerous. The English, if one may
judge from Lord Justice Devlin's writings 7 take
pride in their ability to have a responsible law enforcement program with a minimum of formal
written legal rules. In the United States it is generally assumed that the written rule of law is an
essential method of controlling the exercise of
governmental power, and that the principle of
government by law requires that reliance upon
legal .rules be the dominant method of control.
s The dilemma created by attempting to make the
concept of "arrest" fit all situations in which police
conduct interferes with individual liberty is apparent
in the literature. It is often asserted that the term "arrest" refers to a privilege which may be asserted as a
defense in an action for false imprisonment or battery
against an officer. In this context arrest is said to require a purpose to take the arrested person before a
court. See for example HARPER & JAmxs, Tan LAW OF
ToRTs §3.18, at 285 (1956). On the other hand, it is
sometimes assumed that calling police behavior an arrest is essential if the officer is to be held liable for his
misconduct. See Note, PhiladelphiaPolice Practiceand
the Law of Arrest,100 U. PA. L. REv..1182, 1186 (1952):
"By a literal application of the narrower definition, a
search of the person, detention for questioning and investigation and wholesale round-ups of suspects would
not be arrests. This means that the police may engage
in such activities without being suject to the sanctionsfor
an unlawful arrest." (Emphasis added.)
People v. Esposito, 194 N.Y.S. 326,332 (1922): "Any
restraint of liberty is an arrest."
7 DEvLIN, THE CRIMINAL PROSECUTION IN ENGLAND
(New Haven: Yale University Press, 1958).
FRANK J. REMINGTON
Although this is so, a careful look at the law of
arrest discloses a situation of ambiguity so great
that there are wide areas of discretion largely untouched by legal rules. As a consequence, there is
in fact a delegation of immense power and responsibility to law enforcement agencies whose actions
are left largely uncontrolled by the formal legal
system.
One other preliminary matter should be mentioned. In talking about the law of arrest, one cannot help but envy those foreign participants who
are here from countries where there is a single uniform law throughout the entire jurisdiction. It is
difficult when dealing with 50 separate states and
the federal government to avoid generalizations
so broad that they overlook significant local variations. On the other hand, concentration upon detailed local variations is not possible here. Therefore it is, I think, helpful to try to generalize, even
at the risk of over-generalization, in order to provide a framework for the discussions which will
follow.
THE LAW OF ARusT
Arrest With a Warrant
In the United States an arrest may be made with
or without a warrant. An arrest warrant may be
issued by a magistrate on a showing of probable
cause to believe that the suspect is guilty of a
crime. 8 In most states, the warrant may be issued
on the basis of information and belief. 9 In theory
the issuance of warrants is a judicial function,"0
although in some states a warrant may be issued
by the prosecuting attorney." In practice it is
8A.L.I. CODE OF CRIMINAL PROCEDURE §2 (1931).
9In some states information and belief is clearly
sufficient to support the issuance of a warrant. See for
example Wis. STAT. §954.02 (1957). In other states,
there seems to be a requirement of direct information
similar to that required for a search warrant.
Perhaps the most accurate generalization is that the,
officer applying for the warrant must either have actual
knowledge or must disclose to the magistrate the source
of his information so that the magistrate can make an
independent assessment of its adequacy. Giordenello v.
United States, 357 U.S. 480 (1958).
10Giordenello v. United States, 357 U.S. 48 (1958):
... inferences from the facts tare to be] drawn by a
neutral and detached magistrate instead of being judged
by the officer engaged in the often competitive enterprise of ferreting out crime."
" See for example Wis. STAT. §954.01 (1957). There
is no clear concensus as to what function the warrant
should serve. This was pointed out thirty years ago by
Alfred Bettman in his REPORT ON PROSECUTION FOR
THE NATIONAL COMMISSION ON LAW OBSERVANCE AND
ENFORCEMENT at p. 88 where, in commenting upon
prior surveys, he says: "None of the surveys, however,
[Vol. 51
largely a ministerial function, performed as a
matter of routine by a clerk, with nothing which
could properly be called judicial review of the decision to arrest.
The warrant is utilized today primarily where it
serves some administrative function such as
making a record of the decision to arrest where the
suspect's whereabouts are unknown, or where he
is outside the county or the state and the warrant
is a prerequisite to an arrest by officers of the other
jurisdiction. The warrant may also be issued prior
to arrest when the decision to prosecute actually
precedes the decision to arrest. This is true, for
example, in non-support and in bad check cases
where the prosecutor actually makes the decision
as to whether the criminal process ought to be invoked, and this decision, reflected by the issuance
of a warrant, precedes the arrest. This occurs also
in cases involving difficult legal questions like sale
of obscene literature or negligent homicide. In
these cases, the police may prefer that, before the
offender is taken into custody, a legally trained
official make the decision as to whether the crime
has been committed. However, the common situation is one where the police act first, by arresting a
suspect, and then present the case to the prosecutor
for his decision as to whether to proceed further.
In this situation, the arrest is typically made without a warrant.
Arrest Without a Warrant
In dealing with the law relating to arrest without
a warrant, a distinction must be drawn between an
arrest for a felony and an arrest for a misdemeanor.
The law relating to felonies is more consistent
and easier to state. Generally it may be said that an
arrest may be made for a felony whenever a police
officer has reasonable grounds to believe that a
felony has been committed and that the person to
12
be arrested has committed it.
There is indication
in some legislation that it is proper to arrest a
person who has in fact committed a felony, apparently without regard to whether the officer has
searchingly face, either in the gathering of the data or
in the discussion, this problem of whose function it
should be to determine the institution of prosecution
and what should be the working methods and principles
which govern its administration. Should the clerk of
court be the official in whom this function is placed,
using clerical methods, or the prosecuting attorney
using methods appropriate to that office, or the magistrate using methods of a judicial nature?"
1 A.L.I. CODE OF CRIMINAL PROCEDURE §21 (1931);
Perkins, The Law of Arrest, 25 IowA L. REv. 210, 233
(1940). CAL. PENAL CODE §836.
1960]
POLICE DETENTION AND ARREST PRIVILEGES
knowledge which makes it reasonable for him to
conclude that the individual has committed a
felony. 13 It is clear, however, that the fact that the
person is actually guilty of the felony will not
justify a search if there are no reasonable grounds
to believe him guilty of the felony at the time the
arrest is made. 14 Probably the effect of these
statutes is to preclude tort liability on the part of
the officer when the arrested person is in fact guilty
though the officer has no reasonable basis for concluding this at the time of the arrest 5 This is another instance of the failure to make important distinctions; here, the statutes neglect the difference
between the power of the officer to make an arrest
and the right of an individual to a civil recovery
against the officer. To assert that a person who is
actually guilty of a felony has no right of recovery
against an arresting officer does not require the
enactment of legislation giving an officer the power
to arrest a person, actually guilty, where there are
no reasonable grounds to justify the officer's belief.
It is more difficult to generalize about the situation in regard to the law relating to misdemeanor
arrests. There are at least three identifiable views:
(1) An arrest for a misdemeanor may be made
without a warrant only when a misdemeanor
amounting to a breach of the peace is committed
in the presence of the officer.1" It is typically held
that an offense is committed "within the presence"
when the officer can detect its commission by the
use of his senses, including the senses of hearing
and smelling as well as seeing the elements of the
offense.' 7
(2) The law of some jurisdictions provides a
somewhat broader right of arrest, allowing an arrest for any misdemeanor, not only a breach of
peace, committed in the presence of the officer."
(3) Finally, some few states allow an officer to
arrest for a misdemeanor whenever he has reasonable grounds to believe that a misdemeanor has
1 See for example A.L.I. CODE oF CRnMINAL PRoCEDURE §21(b) (1931): "When the person to be arrested
has committed a felony, although not in the presence
of the officer."
14 People v. Brown, 45 Cal.2d 640, 290 P.2d 528
(1955).
15 HARPER & JAMEs, THE LAW Or ToR
§3.18, at
280 (1956).
16
RESTATE ENT, TORTS §121 (1934),
stating the
common law view.
"7McBride v. U.S., 284 Fed. 416 (5th Cir. 1922);
Dilger v. Commonwealth, 88 Ky. 550, 11 S.W. 651
(1889).
18A.L.I.
CODE
OF
CRIMINAL
(1931); CAL. PENAL CODE §836.
PROCEDURE
§21(a)
been committed. Typicall) these statutes require a
further showing that the officer had reasonable
grounds to believe that an arrest was necessary in
order to prevent additional harm or to prevent the
escape of the person reasonably suspected of having
committed the misdemeanor. 19
This general legislation is, in most states, modified by specific legislation either increasing or contracting a power of arrest depending on what kind
of officers are involved and in some instances depending upon what kind of offense the arrested
person is suspected of having committed. 0
The Right of the Police to Stop and Question a
Suspect
It is obvious that an officer may ask an individual a question and not subject himself to a risk
of liability provided that he does not confine or
restrain the individual without his consent." More
difficult is the question whether the officer can,
under circumstances where grounds for arrest are
lacking, by force or display of authority confine or
restrain an individual for a brief period of time
for the purpose of questioning him.
There is no doubt that it is common police
practice to stop and question suspects as to whom
there are no sufficient grounds for arrest.22 In
19Wis. STAT. §954.03 (1957).
20For a careful study of the situation in one state,
see Comment, Arrest Without Warrant in Wisconsin,
1959 Wis. L. REv. 489.
" Note, Arrest-Stopping and Questioning as an
Arrest, 37 MicH. L. REv. 311 (1938). The police may
properly ask a person to accompany them to the station, and if the suspect consents there is no confinement
without consent. Gunderson v. Struebing 125 Wis. 173,
104 N.W. 149 (1905).
" Note, PhiladelphiaPolice Practice and the Law of
Arrest, 100 U. PA. L. REy. 1182, 1205 (1952). Although
the practice is well known, it is difficult to document.
Police manuals often ignore the problem or deal with
the matter ambiguously, in this respect probably reflecting the ambiguity of current law. A study of 26
police manuals from cities of varying size shows the
following results:
(1) Thirteen of the manuals make no reference to
questioning suspicious persons.
(2) Six of the manuals assume the necessity for questioning but do not attempt to define when questioning
is proper.
(3) Seven of the manuals assume the necessity for
questioning and make an effort to define the circumstances in which questioning should be conducted. Illustrative of these is the Denver, Colorado, manual: "4.
Patrol Procedures. .17 Suspicious persons and known
criminals should be carefully observed and interrogated
if circumstances warrant such action. .18 A suspicious
person is one whose actions, appearance, or very presence in certain places at late or unusual hours would
normally excite the suspicions of an ordinarily prudent
person. An officer armed with knowledge gained by ex-
FRANK J. REMINGTON
[Vol. 5 1
most courts, in part at least because it is assumed
that the issue is whether there were adequate
grounds for arrest.2 6 In a recent case,17 the United
States Supreme Court was urged to give explicit
recognition to the right of police to stop and
question persons suspected of crime. The government argued that
"Being stopped by a police 6fficer for purposes
of inquiry may at times cause some inconvenierice to the person stopped, but that temporary
inconvenience is normally minor compared to
the importance -of such reasonable inquiry to
effective law enforcement. Without the power,
for example, to stop a suspiciously-acting
perience and guided by information concerning the
automobile to ask questions, the police might be
amount and type of crime being committed on his beat,
or in his precinct, would be justified if he were more susforced to spend fruitless hours investigating
picious than the ordinary citizen."
actions which the occupant, had the police been
See similar provisions in: (a) Honolulu, Hawaii,
able to ask him questions, could readily have
RULES AND REGULATIONS OF THE POICE DEPr. under
Duties of the Policeman: S 17, 19, and 33, p. 57; (b)
explained as being entirely innocent. In a fair
Topeka, Kansas, PoLcE DEPT. MANUAL OF REGULAbalancing of the interest at stake, we submit
TiONS under "Duties of the Patrolman" §7, p. 52; (c)
that the rights of the person questioned are
Detroit, Michigan, REvismn DETROIT POLICE MANUAL,
1958, Ch. 16 (arrest) §25; (d) Harrisburg, Pa.,
adequately protected by his privilege not .to
RULES AND REGULATIONS OF BUREAU OF POLICE p. 29
answer and that the police, having reasonable
under "Valuable Information for Policemen"; (e) Salt
Lake City, PoLCE DEPTr. MANUAL, Ch. 14 #38; (f)
grounds for inquiry, ought not to be foreclosed
MILWAUKEE POLICE DEPr. RULES AND REGULATIONS,
from at least the opportunity, by asking ques18.
Rule
14,
§§17,
Rule 29, §24,
tions, to determine whether further investigation
unduly
limited
to
be
material
tends
Police training
in its objective, instructing the officer how to question
is necessary.""
but not when it is proper to question. There ar&, however, exceptions, as in Los ANGELES PouzcE DEPT. The court dealt with the issue with traditional
DAILY TRAINING BUL.ETN 123 (1958): "There is no ambiguity, returning the case to the trial court to
hard and fast rule which will determine when a field determine when the arrest was made without
interrogation should be made. The decision to interrogate must be based on the circumstances of each giving explicit attention at all to the issue of
individual case. Generally, the circumstances will in- whether a right to stop and question exists apart
volve time, place, appeararce, and actions of a person.
from arrest and, if it does, within what kinds of
When one or more of these elements appears to be out
of the ordinary, it may indicate that an interrogation
a detention for purposes of questioning is probably
should be made."
illegal unless grounds for arrest exist. In Perkins, The
See also MILWAUKEE PoucE TRAINING SCHOOL
Law of Arrest, 25 IowA L. REv. 201, 261 (1940), it is
BUL.ETIN, "Field Interrogation" (1954).
said that an officer ought to have the right to question
n Perkins, The Law of Arrest, 25 IowA L. REv. 201,
207 (1940); DONIGAN & FISHER, KNOW TH LAW 228 et when sufficient grounds for arrest ex St. IP ARISTOw,
some instances this can be justified on the basis of
some statutory privilege, other than arrest, such
as the privilege to stop a vehicle for the purpose
of examining a driver's license.n In many instances, however, there is no specific statutory
privilege, and thus the issue remains as to whether
the police have the right to stop and question a
suspect, without his consent, in the absence of
grounds for an arrest. Despite the importance of
the question in day-to-day enforcement, it is
difficult to give a dear answer in most jurisdictions.24 The problem has been largely ignored by
commentators 5 and dealt with ambiguously by
seq. (1957).
Warner, The Uniform Arrest Act, 28 VA. L. REv.
315, 319 (1942). One reason for the failure to deal with
the issue is suggested by Kaufman, J. in United States
v' Bonanno, 180 F. Supp. 71, 78 (S.D.N.Y. 1960):
"I believe the relative dearth of authority in point can
be explained by the fact that few litigants have ever
seriously contended that it was illegal for an officer to
2
FmL INTERROGATION 6 (1958), it is said that an officer
may question anyone who arouses suspicion.
"In Henry v. United States, 361 U.S. 98 (1959)
F.B.I. agents stopped a vehicle in which suspects whom
See also Waite, The Law of Arrest, 24 TEx. L. Rv. 275,
the agents had under surveillance were riding. The
government and the majority of the Court assumed
that the legality of the stopping had to be determined
according to whether adequate grounds for arrest existed at the time of the stopping. Justice Clark, joined
by Chief Justice Warren, took the position that there
were adequate grounds for further investigation which
justified stopping the vehicle: "The earlier events certainly disclosed ample grounds to justify the following
of the car, the subsequent stopping thereof, and the
questioning of petitioner by the agents. This interrogation, together with the sighting of the cartons and the
labels gave the agents indisputable probable cause for
the search and arrest." Id. at 106.
" Rios v. United States, 364 U.S. 253 (1960).
VA. L. REv. 315, 318 (1942), both of whom assert that
States, 364 U.S. 253 '(1960).
stop and question a person unless he had 'probable
cause' for a formal arrest."
The right of an officer to stop and question a suspect
is not dealt with in the RESTATEmENT Or TORTS or
treatises in that field presumably because the question
dealth with in appellate litigation.
is seldom
25
There are apparently only two efforts to deal explicitly with the issue: Note, Arrest-Stopping and
Questioning as an Arrest, 37 MIcH. L. REv. 311 (1938);
seq. (1957).
DONIGAN & FisHER, KNow mx LAw 228 et.
279 (1946), and Warner, The Uniform Arrest Act, 28
nBrief for United States, p. 11, Rios v. United
1960]
POLICE DETENTION AND ARREST PRIVILEGES
limitations. The prosecution's suggestion that the
test should be "reasonable grounds for inquiry"
was neither accepted nor rejected. 29
State courts are in disagreement as to whether
there is a right to detain a person for purposes of
questioning prior to arrest. The issue has been
most often dealt with in California, where the
courts have typically recognized the right to
question.30 Some other state courts have had less
occasion to consider the question but have given
some indication that police may stop and question
under circumstances in which an arrest would be
improper.n Finally, a group of state court decisions
reject the right to detain for questioning unless
there are grounds for arrest.n
Questioning by an officer may produce sufficient
additional information to justify an arrest. It is
not dear whether a refusal to answer can be given
weight in determining whether grounds for arrest
exist.O The answer would seem to depend upon
whether a court considers the privilege against
self-incrimination to apply to on-the-street-questioning and, if it does, whether it requires excluding
a refusal to answer from the issue of arrest ag well
as from the issue of guilt or innocence. Here, too,
current law is ambiguous.3 ' A refusal to answer
seems relevant as a matter of substantive law in
vagrancy cases where being "unable to account
for his presence" is an element of the offense. 3'
Police Officer to Detain for Investigation, 11 OK.LA. L.
could be made. See ATLANTA, GA., POLICE DEP'T.
RULES AND REGULATIONS, Rule 539, p. 65; SAN FRANcisco RULEs AND Paoc. POLICE DEP'T. 12-13; MICH.
STATE POLICE, RULES AiND REGULATIONS, p. 35 sec.
The Right to Frisk a Suspect
If the right to stop and question a suspect is
recognized, then it follows that the officer ought
to be allowed to frisk, under some circumstances
at least, to insure that the suspect is not possessed
of a dangerous weapon which would put the
safety of the officer in peril.38
Certainly it is current practice to frisk some
suspects as to whom there are not sufficient grounds
for arrest. The. Training Bulletin of the Los
Angeles Department states:
"Although persons may appear to be logical
suspects for interrogation, they often prove to
" The fact that the case was returned to the trial
be innocent of any crime. Unless the interrogacourt to determine when the arrest was made may imply that the prior stopping and questioning were proper,
tion is to be more than a casual conversation, an
assuming the officer did not intend, at that time, to take
officer should not place his hands on the person
the suspect into custody. Yet this is not made explicit,
and it is not at all clear what test the trial judge should
questioned. However, if there is any reason to
apply in determining when the arrest took place.
believe that a suspect is armed, he should be
This issue was dealt with more explicitly in United
searched immediately for offensive weapons.
States v. Bonanno, 180 F. Supp. 71 (S.D.N.Y. 1960),
where Judge Kaufman stated, "Not every temporary
It is seldom advisable to make a 'wall shakerestriction of absolute freedom of movement is an ildown' immediately upon contacting an individlegal police action demanding suppression of all re-ual, unless he is known to be, or suspected of
sultant evidence."
'3 The leading case, upon which later decisions rely,
being, an armed or dangerous criminal. After a
is Gisske v. Sanders, 9 Cal. App. 13, 98 Pac. 43 (1908).
short explanation, the average innocent citizen
See also People v. Simon, 45 Cal.2d 645, 290 P.2d 531
will usually be able to comprehend the reason
(1955); People v. Jones, 1 Cal. R. 210, - Cal. App.
2d - (1960); People v. Jackson, 164 Cal. App. 2d 759,
for a field interrogation, but he will seldom be
331 P.2d 63 (1958); People v. Ambrose, 155 Cal. App.
convinced of the necessity for a 'wall shake2d 513, 318 P.2d 181 (1957); People v. Blodgett, 46
Cal.2d 114, 293 P.2d 57 (1956); People v. Martin, 46
down.' "37
Cal.2d 106, 293 P.2d 52 (1956); People v. West, 144
Cal. App. 2d 214, 300 P.2d 729 (1956); People v. officer's questioning persons outdoors at night... and
it is possible that in some circumstances even a refusal
143 Cal. App. 2d 671 (1956).
Jiminez,
31
People v. Henneman 367 Ill 151, 10 N.E.2d 649 to answer would, in the light of other evidence,. justify
"
an arrest. ...
(1937); People v. Mirbelle, 276 Ill. App. 533 (1934);
34See MORGAN, MAGUIRE & WEINSTEIN, CASES AND
State v. Hatfield, 112 IV. Va. 424, 164 S.E. 518 (1932);
MATERIALS ON EvDENcE 763 n.3 (1957).
State v. Zupan, 155 Wash. 80, 283 Pac. 671 (1929);
3 WiNS. STAT. §947.02(2) (1957).
Pena v. State, 11 Tex. Cr. 218 (1929); State v.
38See Hall, Police and Law in a Democratic Society,
Gulcznski, 32 Del. 120, 120 At. 88 (1922).
28
IND.L. J. 133, 158 (1953); Xote, PhiladelphiaPolice
2People v. Esposito, 118 Misc. 867, 194 N.Y. Supp.
326 (1922); Arnold v. State, 255 App. Div. 422, Practiceand the Law of Arrest, 100 TY PA. L. Rxv. 1182,
1204 (1952).
8 N.Y.S.2d 28 (1938); People v. Tinston, 6 Misc.2d
37Los ANGELES POLICE DEPATENT DAILY TRAIN485, 163 N.Y.S.2d 544 (1951); Commonwealth v.
Balanzo, 261 Pa. 507 (1918); Commonwealth v. Doe, ING BULLETix 126 (1958). Typically police manuals
109 Pa. Sup. 187, 167 A.2d 241 (1953); Travis v. are ambiguous as to when a right to frisk exists, often
Bacherig, 7 Tenn. App. 638 (1928); Shirey v. State, 321 reflecting the ambiguity of the law. Often it is not clear
P.2d 981 (Okla. Cr. 1958), noted in Bandy, Power of whether the right is said to exist only where an arrest
Rxv. 320 (1958).
3 In People v. Simon, 290 P.2d 531 (1955), the court
said: "There is, of course, nothing unreasonable in an
FRANK J. REMINGTON
Usually courts which have recognized a privilege
to stop and question a suspect have also recognized
the right of the officer to frisk the suspect if the
officer has reason to believe him dangerous.Hs This
is specifically provided for in the Uniform Arrest
Act.39 On the other hand, it is frequently assumed
that frisking is illegal unless, at the time, there
were sufficient grounds for arrest.40
Limitations Upon the Right to Stop, Question, and
Frisk
There is increasing concern with the question
of when it is proper to subject an individual to
the inconvenience of a reasonable investigation to
determine whether he is guilty of crime. If it is
assumed that there is no right to question, for
example, unless there are grounds for arrest, then
the issue is resolved. But, if it is assumed that
there is a right to question in situations where
there is no right of arrest, these situations must
then be defined. No one, I think, would assert
that questioning should be completely indiscriminate.
5; DETROIT, MICH., REV. DETROIT POLICE MANuAL
(1958) ch. 16, sec. 41; RALEIGH, N.C., MANUAL POLICE
DEP'T. ch. 8, §2. Training materials stress methods of
frisking, without treating the issue of when it is proper
to frisk. See PHILA. POLICE ACADEmY TRAINING PAMPrrT.xFs, vol. 6, pamphlets 2, 11, and 16; CHICAGO POLICE DEP'T. INSTRUCTOR'S MANuAL-PoLICE TRAINING
DIVISION (1958); PEACE OFFICERs' TRAINING SCHOOL
REPORT (Kansas) (1960) at pp. 19-20.
3 See for example Gisske v. Sanders, 9 Cal. App. 13,
98 Pac. 43 (1908): "The officers did nothing which the
plaintiff did not desire, except the examination of his
Serson to see if he carried concealed weapons. This,
owever, was a precaution which the officer might well
take under the circumstances of the meeting and the
conduct of the plaintiff whether the plaintiff was under
arrest or not."
See also People v. Martin, 46 Cal.2d 106, 293 P.2d
Cal.
52 (1956); People v. Jones, 1 Cal. R. 210, (1960); People v. Jackson, 164 Cal. App. 2d
App. 2d 759, 308 P.2d 38 (1958); People v. Brittain, 149 Cal.
A pp. 2d 201 (1957); People v. Jiminez, 143 Cal. App.
300 P.2d 38 (1956).
2d671,
39
Warner, The Uniform Arrest Act, 28 VA. L. REv.
315, 324-327 (1942): "Section 3. Searching for Weapons. Persons Who Have Not Been Arrested. A peace
officer may search for a dangerous weapon any person
whom he has stopped or detained to question as provided in section 2, whenever he has reasonable ground
to believe that he is in danger if the person possesses a
dangerous weapon."
40 See People v. Esposite, 194 N.Y. Supp. 326 (1922);
People v. DiDanna, 210 N.Y. Supp. 135 (1925). See
CAL. PENAL CODE §833 (1958). This statute authorizes
frisking where grounds for arrest exist even though an
arrest has not been made. It casts some doubt upon
earlier California cases which held that frisking was
proper in some circumstances where grounds for arrest
did not exist.
[Vol. 51
Perhaps the test should depend upon the seriousness of the suspected offense. This has been suggested by Mr. Justice Jackson:
"I we assume, for example, that a child is
kidnapped and the officers throw a roadblock
about the neighborhood and search every
outgoing car, it would be drastic and undiscriminating use of the search. The officers might
be unable to show probable cause for searching
any particular car. However, I should candidly
strive hard to sustain such an action, executed
fairly and in good faith, because it might be
reasonable to subject travelers to that indignity
if it was the only way to save a threatened life
and detect a vicious crime. But I should not
strain to sustain such a roadblock and universal
search to salvage a few bottles of bourbon and
catch a bootlegger." 4'
It is not an easy task to develop a verbal formula
to describe the probability of guilt requisite for
stopping and questioning, assuming the objective
is less than the "reasonable grounds to believe"
typically required for arrest, but more than the
mere good faith suspicion of the officer. Development of an adequate formula is particularly
difficult if the sliding scale suggested by Justice
Jackson is followed. The Uniform Arrest Act
proposes "reasonable ground to suspect."12 In
Rios v. United States,4 the government argued that
questioning should be proper where an officer has
"reasonable grounds for inquiry."" The need is for
a test clear enough for day-to-day enforcement
and adequate enough to reflect the need to balance
the nature of the interference with the individual
involved against the risk created by the suspected
conduct. The obvious difficulty of the task does
not justify the easy alternative of ignoring the
issue.
MAJOR CURRENT ISSUES
There are a number of very important current
issues relating to the right of police to detain, to
frisk and to arrest persons suspected of crime. It
may be helpful to try to enumerate these issues,
some of which have already been discussed:
(1) Can a suspect be detained for purposes of
questioning on the basis of less evidence of guilt
41
Brinegar v. United States, 338 U.S. 160,183 (1948).
Warner, The Uniform Arrest Act, 28 VA. L. REV.
315, 320 (1942).
43 364 U.S. 253 (1960).
"Brief for United States, p. 11, Rios v. United
States, 364 U.S. 253 (1960).
4
19601
POLICE DETENTION AND ARREST PRIVILEGES
than is necessary to justify his arrest? If so, how
much evidence of guilt is needed to make it proper
for an officer to stop and question a suspect?
This important law enforcement issue too often
has been ignored entirely or dealt with ambiguously.
(2) How great a probability of guilt should the
law require before allowing the police to make an
arrest without a warrant? It is safe to assume that
the "in presence" requirement involves the highest
probability of guilt of the alternatives, since
the officer must actually observe something which
he reasonably concludes to be a crime being committed in his presence. If he is to arrest for a
misdemeanor not committed in his presence, he
must get a warrant. This requirement would have
meaning if there were in fact a judicial review of
his decision to arrest; but where the issuance of
the warrant is in ministerial function, it is not
apparent what purpose is served by this process
except perhaps a delay in the decision to arrest
and, as a result, more reflection than would take
place if the arrest were made immediately. Statutes
allowing police to arrest upon reasonable grounds
to believe the suspect guilty of any crime have been
in existence sufficiently long to make it possible
to assess their effect in current administration and
to make meaningful evaluation of the alternatives.
(3) Does the "reasonable ground to believe"
requirement for arrest necessitate as much evidence
of guilt as is required to charge a person with a
crime and hold him for trial? Some courts have
at least implied that the requirements are the
same. For example, the United States Supreme
Court said in the Mallory case:
"Presumably, whomever the police arrest they
must arrest on "probable cause." It is not the
function of the police to arrest, as it were, at
large and to use an interrogating process at
police headquarters in order to determine whom
they should charge before a committing magis4
trate."
However, subsequent to the Mallory case, a
majority opinion of the Court of Appeals for the
District of Columbia, in applying the Mallory
Rule, assumed the contrary to be true:
"A vital factor to bear in mind is that as these
steps progress the burden of the law enforcement agency increases. What may constitute
probable cause for arrest does not necessarily
15 Mallory v. United States, 354 U.S. 449,456 (1957)"
constitute probable cause for a charge on
arraignment.""
The issue is an obviously important one, in terms
of both the standard for arrest and the right of
police to interrogate a suspect between the time of
his arrest and his initial appearance before a
magistrate. As to some offenses, there is no problem. For example, an arrest is not made for nonsupport unless there is adequate evidence to
warrant charging and conviction. As to other
offenses, however, a difficult problem does exist.
For example, it is not uncommon to arrest a
number of suspects in an armed robbery case under
circumstances in which it would not be proper or
desirable to charge each person arrestedYg In this
kind of situation it has been thought proper by
most police agencies to arrest on the basis of less
evidence than is needed to warrant charging and
holding for trial. On the whole, the situation is
characterized by unnecessary ambiguity.
(4) When, assuming a person is to be subjected
to criminal prosecution, is it necessary to take
him into custody immediately? This question is
resolved by those statutes which require, in addition to reasonable ground to believe that a misdemeanor has been committed, a showing that
there were reasonable grounds to believe that
further damage or escape would result unless an
arrest were immediately made.4 However, the
"in presence" statutes, although requiring a high
probability of guilt, do not in any way require a
showing that immediate custody is necessary.
Thus a person who fails to come to a complete
stop at a stop sign may be taken into custody
though he is a well-known member of the community, and though it is apparent that neither
further harm nor escape would be at all likely.
Typically an arrest would be made in such a
situation only where the officer desired to make a
search and used the arrest to legitimize the search.
Whatever the merits of allowing a search in such
a situation, the obvious consequence is to distort
the law of arrest.
Statutes authorizing the use of a summons in
lieu of arrest have apparently hot been much
utilized in practice, in some states at least. Knowledge of why this is so would be helpful in devising
workable substitutes for arrest in situations where
immediate custody is unnecessary.
46 Goldsmith v. United States, 277 F.2d 335 (D.C.
Cir. 1960).
47 Ibid.
48Wis.
STAT. (1957) §954.03.
FRANK J. REMINGTON
[Vol. 51
arrests are not made for every offense which
(5) What function should the warrant of arrest
serve? There is abundant evidence that in current
comes to the attention of the police. So great has
practice the warrant does not serve as a judicial been the proliferation of criminal statutes that
review of the decision to arrest. It is, therefore, arrest of all violators would cause a breakdown
important to known precisely what function it of the criminal justice system. There must theredoes serve and, on the basis of this knowledge, to fore be a limitation upon the number of persons
re-examine legal requirements relating to the subjected to the criminal process. As a practical
issuance and execution of the warrant.
matter, this limitation must take place, in large
(6) Do police have a right to release a person, part, at the arrest stage since this is ordinarily the
once arrested, without charging him? His release first official decision relating to the offender's
may be made because there is insufficient evidence conduct. The power and responsibility which
to convict; because subsequent investigation has this discretion gives police is immense. Too often
disclosed the innocence of the person arrested;
the existence of this discretion is denied and its
because charging will not accomplish anything exercise is, therefore, left without guidance and
worthwhile, as, for example, in the case of the control from the legal system.
49
These are abviously difficult problems which
drunk who is arrested and released when sober;
because the arrested person agrees to serve as an cannot easily be solved. Adequate solution requires
informant; or, because the arrest itself has served detailed knowledge of current arrest practices and
a deterrent purpose without the necessity of the consequences of those practices in current
administration. This is an objective of the Amerifurther official action.
It is often asserted that the police must bring can Bar Foundation's Survey of the Administration
an arrested person before a magistrate and that a of Criminal Justice in the United States.n The
failure to do so renders the arrest finlawful.EO results of the pilot phase of this survey will be
Yet the practice is clearly to the contrary, and published in a year or two.? Other research efforts
recent legislative proposals frequently contain are now in the planning stage. The American Law
Institute has tentative plans to prepare a Model
provisions legitimizing this practice.
(7) How much discretion should police have in Law of Arrest, Search and Seizure which certainly
determining what conduct should be subjected to must face these issues and make an effort to
the criminal process, and how should the exercise resolve them.
of that discretion be controlled? 51 It is obvious that
Whatever the difficulties, existing legislation
4
9 Hall, Law of Arrest in Relation to Contemporary can certainly be made more adequate. Police
agencies deserve clearer guidance in the discharge
Social Problems, 3 U. Cm. L. Rav. 345, 354 (1936).
0 For an able analysis of how the issue of release by of their law enforcement responsibility than is
the police should be handled in tort, see Bohlen &
afforded by the law today.
Shulman, Effecl of Subsequent Misconduct on Lawful
Arrest, 28 CAm-. L. Rxv. 841 (1928).
61See Williams, Turning a Blind Eye, 1954 CxuM. L.
(Yale University Press, 1935), where the view is exREv. (N.Y.) 271, where the following view is expressed:
pressed that discretion in the police is inherent in cur"And so to demand that he [the policeman] should ex- rent administration: "However, so far as the effect of
ercise some sort of discretion, and refrain from en- the number of criminal laws on policemen or the proseforcing certain laws is neither fair nor correct. In the cutor is concerned, they are more apt to be a help than a
first place, it demands of him a judgment and a sense of hindrance. Such persons are trying to apprehend inresponsibility which is scarcely reflected in our treat- dividuals who at the time happen to be considered danment of him when we fix his salary in relation to that of gerous to society, and the wider the selection of laws
other public officers. But, more important, such a proc- which they have, the more chance there is of convicess must inevitably subject all police activity to the tion."
14The entire cost of the project has been covered by a
personal likes and dislikes of individual policemen."
For a contrary view see Dunning, Discretionin Prose- grant from the Ford Foundation in the amount of
$445,000.
For a description of the general aims of the
cution, 1 Pouca J. 39,47 (1928): "But if they [the police] believe that the prosecution is not necessary as an research see Remington, Criminal Justice Research, 51
example and warning to others, they may legitimately J.Cnm&. L., C. & P. S. 7 (1960).
consider whether the offender may be saved from a . U For an analysis of some of the data relating to
repetition of his offense by treating him otherwise than police discretion see Goldstein, Police DiscretionNot To
Invoke the Criminal Process: Low Visibility Dezisions in
byprosecution."
ee also ARxOLD, THE SYMBOLS OF GovERmENTx~ 160
the Administration of Justice, 69 YALE L. J.543 (1960).